United States v. Liverman ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4477
VANNIS L. LIVERMAN, a/k/a Vann,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4478
ELTRENTROSE F. LIVERMAN, a/k/a
Trent,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-95-151)
Submitted: June 24, 1997
Decided: July 10, 1997
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Beth M. Farber, Assistant Federal Public Defender, Gordon Widen-
house, Assistant Federal Public Defender, Raleigh, North Carolina,
for Appellants. Helen F. Fahey, United States Attorney, Fernando
Groene, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
This is a consolidated appeal. Brothers Vannis and Trent Liverman
(the Livermans), who pled guilty to conspiracy to possess with intent
to distribute heroin, cocaine, and cocaine base,1 appeal their convic-
tions and sentences claiming that the district court erred by refusing
to allow them to withdraw their guilty pleas and by denying their
requests for new counsel. After a review of the record, we find that
the district court did not abuse its discretion in denying the Liver-
mans' motions to withdraw their guilty pleas and requests for new,
appointed counsel. Therefore, we affirm the Livermans' convictions
and sentences.
First, the Livermans claim that the district court erred by refusing
to grant their motions to withdraw their guilty pleas. Rule 32(e) of the
Federal Rules of Criminal Procedure provides that a court may permit
withdrawal of a guilty plea if the motion is made before sentencing
and if the defendant establishes any "fair and just" reason for with-
drawal of the plea.2 The Livermans have the burden of showing a "fair
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1 21 U.S.C. § 846 (1994).
2 See United States v. Hyde, ___ U.S. ___, 65 U.S.L.W. 4369 (U.S.
May 27, 1997) (No. 96-667).
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and just" reason for the withdrawal.3 We review a motion to withdraw
a plea under an abuse of discretion standard.4
In their motion to withdraw their guilty pleas, the Livermans claim
that their pleas should be withdrawn because: 1) they were innocent
of dealing heroin; 2) they were coerced into pleading guilty by their
attorneys; and 3) counsel was ineffective. Additionally, they assert
that their pleas were made unknowingly because they lacked suffi-
cient knowledge of how the federal sentencing guidelines affected
their sentences. Trent also claims that he did not understand the
charges against him. The Livermans' claims are without merit.
The district court did not abuse its discretion in denying the Liver-
mans' motions to withdraw their guilty pleas because the Livermans
are in fact guilty of conspiracy to possess with intent to distribute her-
oin, cocaine, and cocaine base,5 and they received effective assistance
of counsel. At the Rule 11 colloquy, see Fed. R. Crim. P. 11, both
Vannis and Trent stated under oath that they were in fact guilty of the
crimes charged, that their attorneys had considered all possible
defenses, and that they were satisfied with their attorneys' representa-
tion. Their statements at the Rule 11 hearing are presumptively trust-
worthy and are considered conclusive absent compelling evidence
showing otherwise.6 Conclusory non-credible assertions of undue
attorney pressure to plead guilty are simply insufficient to establish
a "fair and just" reason.
Additionally, the Livermans never make credible assertions of
innocence or establish that their pleas were unknowing or involuntary.
Although the Livermans claim that they lacked sufficient knowledge
of the sentencing guidelines to make a knowing plea, their claim is
without merit because the transcript of the plea colloquy shows that
the Livermans' pleas were knowing, voluntary, and supported by an
independent basis in fact. Once the Livermans indicated a lack of
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3 See FED. R. CRIM. P. 32(e); United States v. Moore, 931 F.2d 245, 248
(4th Cir. 1991).
4 See Moore, 931 F.2d at 248.
5 21 U.S.C. § 846.
6 See Blackledge v. Allison , 431 U.S. 63, 73-74 (1977).
3
knowledge regarding the federal sentencing guidelines, the district
court explained the relationship between their criminal conduct and
the sentencing guidelines. The court also informed them that an accu-
rate estimate of their sentences was not possible until the presentence
report was prepared. The Livermans responded that they understood,
and that they did not have any more questions regarding the sentenc-
ing guidelines. They also acknowledged that they understood that
they could not withdraw their guilty pleas if their sentences were
more severe than anticipated. Thus, the pleas were knowingly made,
and the appropriately conducted Rule 11 proceeding raises a strong
presumption that the pleas are final and binding.7
Next, the Livermans claim that the district court should have
appointed substitute counsel. The claim is without merit because the
Livermans fail to show good cause.8 The decision whether to appoint
substitute counsel rests within the sound discretion of the trial court,9
and the court inquired into the Livermans' complaints against counsel
and found them baseless. The Livermans failed to show that they
were prejudiced by counsels' actions,10 and the Livermans acknowl-
edged at the Rule 11 colloquy that counsels' actions had been satis-
factory. Thus, the court did not abuse its discretion in failing to
appoint new counsel for the evidentiary hearing on the motions to
withdraw the guilty pleas and for sentencing. Moreover, there is no
statutory or constitutional right to a "meaningful attorney-client
relationship."11
Finally, Vannis Liverman asserts on appeal that counsel was inef-
fective at sentencing for not challenging his guidelines computation.
Vannis's claim is without merit. A claim of ineffective assistance of
counsel is not generally appropriate on direct appeal. Claims of inef-
fective assistance should be raised in a motion pursuant to 28
U.S.C.A. § 2255 (West 1994 & Supp. 1997), unless it conclusively
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7 See United States v. Lambey , 974 F.2d 1389, at 1394 (4th Cir. 1992)
(in banc).
8 See United States v. Gallop , 838 F.2d 105, 107-08 (4th Cir. 1988).
9 See Gallop, 838 F.2d at 108.
10 See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
11 Morris v. Slappy, 461 U.S. 1, 13-14 (1983).
4
appears from the record that counsel did not provide effective
assistance.12 The record does not conclusively show that counsel was
ineffective; thus, this claim is without merit.
Accordingly, we affirm the Livermans' convictions and sentences.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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12 See United States v. Fisher, 477 F.2d 300, 302 (4th Cir. 1973).
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